Submission of the Australian Government
Draft General Comment on Article 6 of the Convention on the Rights of Persons with
Disabilities
1. The Permanent Mission of Australia to the United Nations and other international
organisations in Geneva hereby presents the Australian Government’s response to the
United Nations Committee on the Rights of Persons with Disabilities (the Committee)
invitation for written comments on draft General Comment on Article 6: Women with
disabilities.1
2. The Australian Government thanks the Committee for the opportunity to provide a
written submission on the draft General Comment. Australia is a longstanding party to
the Convention on the Rights of Persons with Disabilities (the Convention) and its
Optional Protocol, as well as the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) and the Convention on the Rights of the
Child (CRC) and is firmly committed to upholding its obligations.
3. Australia considers that some parts of the draft General Comment purport to extend the
responsibilities of State Parties beyond the legal obligations in the text of the
Convention. Australia therefore invites the Committee to clarify the statements in the
draft General Comment regarding the scope of the legal obligations of State Parties
under the Convention.
Girls’ rights
4. Article 6 of the Convention relates to the rights of women and girls. However, the draft
General Comment is titled, ‘Women with Disabilities’. Australia suggests that the
Committee consider changing the draft General Comment’s title and addressing the
specific needs of female children with disabilities. The discussion should reflect the
principle that the best interest of the child must be a primary consideration and consider
1
Committee on the Rights of Persons with Disabilities, draft General Comment on Article 6: Women with
disabilities UN Doc CRPD/C/14/R.1, 22 May 2015.
Australian Permanent Mission to the UN
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the particular issues raised when assessing capacity and obtaining consent in relation to
girls with disabilities.
States Parties’ Obligations
Obligations of immediate effect and obligations of progressive realisation
5. The draft General Comment states that ‘[o]bligations under Article 6 are of immediate
nature’ and that these rights ‘apply at the moment of ratification and are subject to
immediate realisation’.2 Australia agrees that prohibitions against discrimination in
Article 6(1) are obligations of immediate effect. However, Australia’s understanding is
that economic, social and cultural rights, consistent with Article 4(2) of the Convention,
are obligations of progressive realisation. Respectfully, it does not accept the view that
the obligations in Article 6(2) are those of immediate effect.
Specificity of measures to fulfil obligations
6. Australia is of the view that the draft General Comment would benefit from being less
prescriptive in recognition of the different circumstances of each State Party. 3 A
preferable approach would be to provide examples of ways in which States Parties could
fulfil their obligations to women and girls with disabilities. Such an approach is consistent
with the text of the treaty, including the obligation in Article 6 to take all appropriate
measures to ensure the full development, advancement and empowerment of women and
the obligation in Article 5(3) to provide reasonable accommodation.
Relevance of other human rights treaties
7. Paragraph 3 of the draft General Comment refers to Article 6 being the ‘…first binding
equality provision in United Nations’ human rights law that unequivocally outlaws
discrimination on the basis of gender and disability’. Australia considers this assertion
should be qualified in two respects. Firstly, Article 2(1) of the CRC explicitly recognises
both sex and disability as grounds of prohibited discrimination. Secondly, as a matter of
2
Paragraph 28 of the draft General Comment.
See, for example, references to requirements for States Parties to: facilitate women and girls with disabilities to
organize themselves to do advocacy for their rights and to ensure equal access to justice and to determine a
time-table for achieving equality for women and girls (paragraph 33), to provide accessible gynaecologist’s
examination beds/mammography equipment, that babies bottles with handles and other items be included in
publicly available catalogues at affordable cost, transport staff making available required specific services for
children (paragraph 39), provide families and teaching staff complementary training (paragraph 50), boost
measures to promote self-employment, entrepreneurship among women with disabilities (paragraph 54), support
all anti-discriminatory legislative efforts by running public cultural campaigns in parallel (paragraph 61) and
facilitate networks of organisations of women and girls (paragraph 67).
3
Australian Permanent Mission to the UN
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international law, it is now generally accepted that the prohibition on discrimination in
Article 26 of the International Covenant on Civil and Political Rights (ICCPR) includes
discrimination on the basis of sex and disability, even though disability is not explicitly
referenced in the text.
8. Paragraph 2 of the draft General Comment sets out the Committee’s view that most
United Nations human rights treaties do not address the human rights of women and girls
with disabilities. Australia respectfully disagrees.4 It notes that the rights in these treaties
are universal and apply to women and girls with disabilities, regardless of whether the
text itself refers expressly to women and girls with disabilities. This is consistent with the
reference in the draft General Comment that human rights are universal, indivisible and
interdependent and interrelated.5 Australia respectfully submits that this paragraph should
reflect that States Parties have obligations with respect to the human rights of women and
girls with disabilities under these treaties as well.
Non-State actors
9. State Parties are required to take appropriate measures to eliminate discrimination by
private enterprise (Article 4(1)(e)). However the current wording of paragraph 22 could
be confused with State Parties’ being directly responsible for the private actors' acts,
which is not the intention of that Article. While States Parties’ obligations in some
circumstances extend to taking steps to prevent, investigate, punish and redress abuse by
third parties through effective regulation, the Convention does not place obligations on
non-state actors.
Multiple forms of discrimination
10. Australia welcomes the valuable guidance in the draft General Comment about the nature
of multiple forms of discrimination. It addresses the normative content of Article 6 with
reference to a number of articles in the Convention and CEDAW.6 Australia supports the
recognition of the interconnectedness of the United Nations human rights treaties and the
interpretation of international law consistently across similar obligations by treaty bodies.
4
Australia refers the Committee to the Committee on Economic, Social and Cultural Rights General Comment
No 5, Persons with Disabilities (1994) UN Doc E/1995/22, the Committee on the Elimination of All Forms of
Discrimination Against Women’s General Recommendation No 18 on Disabled women (Tenth session, 1991)
UN Doc A/46/38 and General Recommendation No 24, Article 12 of the Convention (Women and Health)
(Twentieth session, 1999) UN Doc A/54/38/Rev.1 and the Committee on the Rights of the Child General
Comment 9, The rights of children with disabilities (2007) UN Doc CRC/C/GC/9.
5
Paragraph 34 of the draft General Comment.
6
See paragraphs 15 and 16 of the draft General Comment.
Australian Permanent Mission to the UN
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11. Australia suggests that the draft General Comment could be structured to provide clearer
guidance to States Parties in relation to multiple forms of discrimination. For example,
the interaction between Article 6 and Articles 4 (general obligations) and 5 (equality and
non-discrimination) of the Convention could be further detailed.
12. Australia suggests the draft General Comment clarify that disability must be a ground of
discrimination for the non-discrimination protections of the Convention to apply (see
paragraph 16). In Australia’s view, Article 5(2) of the Convention is only engaged where
there is either a nexus between the discrimination and a person’s disability or the legal
protections afforded to a person against discrimination and the person’s disability. An
alternative reading would tend to diminish the roles of other UN treaty bodies.
13. Australia considers the draft General Comment’s discussion of the nature of multiple
forms of discrimination could be streamlined and clarified, particularly in relation to the
linking of grounds of discrimination creating new forms of discrimination7 as the
different expressions of this concept result in inconsistencies in the text.8 Further, the
Committee states that determination of multiple forms of discrimination ‘requires finding
the right comparator’.9 Australia considers that a comparator may not always be required
to determine whether discrimination has occurred, particularly where the potential
discrimination is of an indirect nature or relates to reasonable accommodation.10
Interaction with other articles of the Convention
14. In a General Comment dedicated to Article 6 we consider the bulk of the discussion
should focus on this Article. Where other articles are mentioned, the discussion of the
interaction with Article 6 should be clear and succinct.
Violence against women and girls: Article 16 of the Convention
15. Paragraph 6 of the draft General Comment provides the Committee’s view of the scope of
violence against women and girls with disabilities. Australia observes that an overly
broad interpretation of violence in Article 16 does not appear to be supported by the text
7
See paragraphs 8, 9, 16 and 17 of the draft General Comment, for example.
For example, in paragraph 16, the draft General Comment states that ‘intersectional discrimination manifests
itself as an entirely new form of discrimination’, whereas at paragraph 17, the draft General Comment explains
how often grounds for discrimination are inextrictably linked and may lead to different, other degrees of
discrimination or to new forms of discrimination’.
9
Paragraph 19 of the draft General Comment.
10
The draft General Comment seems to acknowledge this, observing that direct discrimination ‘…also includes
detrimental acts or omissions on the basis of prohibited grounds where there is no comparable similar situation’.
See Paragraph 20 of the draft General Comment.
8
Australian Permanent Mission to the UN
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of that Article, noting the general rules of treaty interpretation in the Vienna Convention
on the Law of Treaties.
16. Consistent with its approach to substituted decision making below, Australia does not
accept that the provision of medical treatment, including where the consent of the person
involved cannot be obtained for a range of reasons, amounts to cruel, inhuman or
degrading treatment. This view is consistent with statements by the Committee against
Torture, the UN treaty body with primary responsibility for human rights relating to
torture, cruel, inhuman and degrading treatment and punishment.11
Substituted decision making: Article 7, 12 and 17 of the Convention and Articles 3, 5 and 12
of the CRC
17. Paragraph 7 sets out the Committee’s view that the substituted decision making by a legal
representative is a violation of Article 12 of the Convention. Australia notes that the
Committee has already issued a General Comment on Article 1212 and considers that this
discussion is unnecessary in the draft Comment. Australia acknowledges the importance
of supporting decision making by women and girls with disabilities. It maintains its
long-held view that substituted decision making, where necessary and as a last resort, is
consistent with Article 12 when subject to the safeguards required in Article 12(4),
including in relation to medical treatment.13 Indeed, the text of Article 12(4), including
that measures relating to the exercise of legal capacity be for the shortest time possible
and subject to review by a competent, independent and impartial authority or judicial
body, appear particularly aimed at supporting substituted decision making.
18. If the Committee maintains references to substituted decision making, Australia suggests
that the Committee specifically consider decision making by girls with disabilities with
reference to Article 7 of the Convention and Articles 3, 5 and 12 of the CRC. For children
with disabilities, the best interests of the child will be a primary consideration (Articles
7(2) of the Convention and 3(1) of the CRC). States Parties must also respect the evolving
11
See for example, recommendation 20 of the Committee against Torture in its Concluding Observations on the
fourth and fifth periodic reports of Australia, which would allow sterilisation without the consent of the person
where there is a serious threat to life or health. UN Doc CAT/C/AUS/CO/4-5, 23 December 2014.
12
Committee on the Rights of Persons with Disabilities, General Comment No 1, Article 12: Equal recognition
before the Law (2014). UN Doc CRPD/C/GC/1
13
See Australia’s interpretative declaration upon entering into the Convention, Australia’s Initial Report to the
Committee at paragraph 55(Initial reports submitted by States parties under article 35 of the Convention:
Australia CRPD/C/AUS/1, 7 June 2012) and Australia’s submission to the Committee with respect to the draft
General Comment on Article 12, Views of the Australian Government on the draft General Comment by the
Committee on the Rights of Persons with Disabilities regarding Article 12 of the Convention – Equal
Recognition before the Law.
Australian Permanent Mission to the UN
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capacities of the child and take steps to ensure that children capable of forming their own
views have the ability to express those views (Articles 7(3) of the Convention and 12(1)
of the CRC). Article 12(2) of the CRC explicitly recognises that a child may be heard
through a representative or an appropriate body.14
19. With respect to implementation at the national level and paragraph 61, Australia reiterates
that neither articles 6, 12 nor 17 requires the abolition of all substituted decision making
regimes and mechanisms.15
Right to life: Article 10
20. The right to life in Article 10 of the Convention is based on Article 6 of the ICCPR which
is the right not to be arbitrarily deprived of one’s life. With the exception of the statement
that ‘girls are less likely to receive care and food than boys’, paragraph 41 refers to the
right to life in the context of discrimination against girls in such areas as education, health
care and more broadly within society and the family. In Australia’s view, this paragraph
is not reflective of States Parties’ obligations in Article 10 and should be deleted.
International cooperation: Article 32
21. Paragraph 58 obliges States Parties that are not able to comply with their obligations and
realize the rights in Article 6 due to a lack of resources to seek international cooperation
and assistance. Australia does not consider that this reflects the obligation in either Article
32 or Article 6 and suggests that the mandatory language be removed and replaced with a
reference to the need to seek international assistance where appropriate.
Other comments
22. Paragraphs 5 and 7 of the draft General Comment refers to ‘sexual and reproductive
rights’ including ‘the right to motherhood and child-bearing responsibilities’. Australia
notes that neither the text of the Convention nor other human rights treaties provide for
such rights – although family and marriage rights, such as Article 23, are protected.
Australia suggests that the draft General Comment refers to specific obligations in the
text of the Convention.
14
Australia notes that the content of paragraph 7 is largely re-iterated at paragraphs 45-46 and paragraph 22 and
considers the above comments also apply to these paragraphs.
15
Paragraph 46 of the draft General Comment.
Australian Permanent Mission to the UN
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23. As a matter of treaty interpretation, the obligations in the Convention only bind States
Parties, rather than States generally. On this basis, Australia suggests that the draft
General Comment refer to ‘States Parties’ rather than ‘States’.
24. The Committee may also wish to include a reference to the non-discrimination and
equality provisions in the Convention at footnote 11.
25. Australia reiterates its support for the work of the Committee and avails itself of this
opportunity to renew to the Committee the assurances of its highest consideration.
Australian Permanent Mission to the UN
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